Madras High Court
M/S.National Insurance Company ... vs Srimathi Sudha on 25 March, 2022
C.M.A.No.3404 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.03.2022
CORAM
THE HON'BLE Ms.JUSTICE P.T.ASHA
C.M.A.No.3404 of 2019
and
C.M.P.No.20011 of 2019
M/s.National Insurance Company Limited,
L.R.N. Colony,
Saradha College Main Road,
Hasthampatti, Salem - 7. ... Appellant
Vs
1.Srimathi Sudha
2.Minor Kanishka
3.R.Rangaswamy
4.R.Ravi
5.Minor Kishanth
Minors Represented by their mother
Srimathi Sudha as next friend
and natural guardian.
6.Sellamuthu ... Respondents
PRAYER : Civil Miscellaneous Appeal has been filed under Section 173
of the Motor Vehicles Act, to set aside the judgment and decree passed in
M.A.C.T.O.P.No.124 of 2016 dated 23.03.2018 on the file of the Motor
Accident Claims Tribunal, Special District Court, Salem.
1/13
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C.M.A.No.3404 of 2019
For Appellant : Ms.N.B.Surekha
For Respondents : Mr.A.G.F.Terry Chella Raja
for R1 to R5
R6 - Served - No Appearance
JUDGMENT
The Insurance Company is before this Court, challenging the
award passed in M.A.C.T.O.P.No.124 of 2016 by the Motor Accident
Claims Tribunal, Special District Court, Salem.
2. The petition has been filed by the respondents herein, who are
the legal heirs of the deceased Manikandan under Section 163-A of the
Motor Vehicles Act, 1988. The accident in which Manikandan has lost
his life has occurred as follows:
The deceased Manikandan was riding his motorcycle bearing
Registration No.TN 54 Z 4208 in Imlikhedha Road, Madhya Pradesh and
as he was proceeding near the Khartalai Bridge, Ulijhawan, Imlikheda,
the deceased while taking a turn hit against the railing of a bridge and
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C.M.A.No.3404 of 2019
fell into the canal along with the motorcycle. In the fall, he had injured his
head and became unconscious. He was admitted to a private hospital at
Bhopal, where he died.
3. The claimants are the wife, minor son, father and brother of the
deceased, Manikandan. The respondents 1 to 5 have claimed a sum of
Rs.25,00,000/- as compensation for the accident that had taken place in
Madhya Pradesh and where First Information Report had been lodged at
Madhya Pradesh, the claimants had moved the Motor Accident Claims
Tribunal at Salem. It was also stated that the deceased was working as a
driller under one Sellamuthu.
4. The Insurance Company has filed a counter denying the liability
on the ground that the accident had happened only on account of the
negligence of the deceased himself and therefore, the Insurance Company
was not liable to compensate the loss.
5. The Tribunal below, however, proceeded to pass an award for a
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C.M.A.No.3404 of 2019
sum of Rs.6,83,673/- by order dated 23.03.2018 in M.C.O.P.No.124 of
2016.
6. Challenging the same, the Insurance Company has filed the
above appeal.
7. The appeal has been filed on the ground that the claimants were
not entitled to compensation since the accident had occurred only on
account of the negligence of the deceased himself. They would contend
that the Tribunal has over looked the fact that since the deceased was the
tort-feasor and no extra premium had been collected from the owner of
the vehicle he is not covered under the policy, the Insurance Company
was not liable to pay the compensation.
8. Mrs.N.B.Surekha, learned counsel appearing on behalf of the
Appellant / Insurance Company would placed reliance upon the judgment
of the Hon'ble Supreme Court in the case of Ramkhiladi and another Vs.
The United India Insurance Company and another reported in 2020
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C.M.A.No.3404 of 2019
(2) SCC 550, where the Hon'ble Supreme Court has held that in order to
make a claim under Section 163-A against the owner / insurer of the
vehicle, the deceased has to be a third party and unless this fact is
established, the claimants are not entitled to be compensated, since the
provision is covered under no fault liability.
9. Per contra, Mr.A.G.F.Terry Chella Raja, learned counsel
appearing on behalf of the respondents / claimants would submit that the
deceased was an employee of the sixth respondent herein and therefore,
the third party to the vehicle and he has been rightly compensated by the
Insurance Company. He was also invoked the provisions of Section 147
of the Motor Vehicle Act relating to the requirement of policy and
limitation of the liability to state that the Insurance Company has to
definitely cover the death or bodily injury to any person or damage to the
property of a third party. He would rely upon the judgment of the Hon'ble
Supreme Court reported in (2019) 12 SCC 395 in Shivaji and Another
Vs Divisional Manager, United India Insurance Company Limited and
Others, in support of his argument that in the case of Section 163-A
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C.M.A.No.3404 of 2019
petition, the Insurance Company cannot raise the issue of negligence. He
also relied upon the Division Bench judgment of this Court reported in
2003 ACJ 1021 in Oriental Insurance Co. Ltd., Vs. Kaliya Pillai and
others and 2015 (2) TN MAC 362 (DB) in M.Anbalagan Vs.
K.M.Asalm Basha. In the first of the judgments, the Division Bench had
held that the tort-feasor cannot claim compensation from the owner of the
vehicle and cannot also make a claim from the Insurance Company.
However, the Bench had observed that the liability of the Insurance
Company is not determined only with reference to the provisions of the
Motor Vehicles Act, but also with reference to the contract of insurance
which would extent to the liability under the Workmen Compensation
Act.
10. The Division Bench has proceeded to grant compensation
under the Workmen Compensation Act as the person who had
succumbed to the injury was a driver of the vehicle and employed under
one Sellamuthu and therefore, he was liable to be compensated under the
Workmen Compensation Act.
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C.M.A.No.3404 of 2019
11. Similarly, in the second judgment, the learned Judge had
observed that the victim could approach the Forum under the Motor
Vehicles Act, 1988 or the Forum under the Employees' Compensation
Act. However, in order to approach the Court under Section 166 of the
Motor Vehicles Act, he must not himself be a tort-feasor. If a claim is
made under Employees Compensation Act, the Bench ultimately held that
the claimant was the driver of the lorry and therefore, was working under
the first respondent and therefore he was entitled to be compensated
under the Employees' Compensation Act.
12. In the case on hand, though the claimants / respondents 1 to 5
had contended that the deceased was working under the first
respondent/Sellamuthu, there is no proof of the same. Further, a mere
reading of the First Information Report, in the vernacular (Hindi) would
clearly show that the accident had occurred only on account of the rash
and negligent driving of the deceased himself. However, the English
translation has not captured the exact meaning of the words. In the
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C.M.A.No.3404 of 2019
F.I.R., in Hindi language it is stated that the eye witness had reported that
the motorcycle, in which, the motorcyclist was travelling was driven
rashly and negligently with great speed and as a result of which, he was
not able to stop the motorcycle while taking the curve and hit on the
bridge and as a result of which he had fallen over the railings. Therefore,
it is clearly evident that the deceased himself was a tort-feasor and by
reason of the judgment of the Hon'ble Supreme Court in Ramkhiladi and
another Vs. The United India Insurance Company and another
reported in 2020 (2) SCC 550, the deceased is not entitled to be
compensated by the Insurance Company. The judgment has been
reiterated by this Court in C.M.A.No.2638 of 2019, where in, this Court
has observed as follows:
''38. In Ramkhiladi and another v. The United
India Insurance Company and another [2020 (2)
SCC 550], the Tribunal had relied upon the principle
that in a claim under Section 163A the claimant was
not required to plead or establish negligence. The
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C.M.A.No.3404 of 2019
High Court had overturned this finding and held that
the application under Section 163A of the Act
against the Insurance Company of the vehicle driven
by the deceased himself is liable to be dismissed.
This was the subject matter of challenge before the
Hon'ble Supreme Court. The learned Judge
explained the principle and the purport of a claim
under section 163A in Para 5.5 which is extracted
herein below:
"5.5 It is true that, in a claim under Section
163A of the Act, there is no need for the claimants to
plead or establish the negligence and/or that the
death in respect of which the claim petition is sought
to be established was due to wrongful act, neglect or
default of the owner of the vehicle concerned. It is
also true that the claim petition under Section 163A
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C.M.A.No.3404 of 2019
of the Act is based on the principle of no fault
liability. However, at the same time, the deceased
has to be a third party and cannot maintain a claim
under Section 163A of the Act against the
owner/insurer of the vehicle which is borrowed by
him as he will be in the shoes of the owner and he
cannot maintain a claim under Section 163A of the
Act against the owner and insurer of the vehicle
bearing registration No. RJ 02 SA 7811."
39. The tenor and purport of the above
Judgment is the principle of 'No Fault Liability”
obviously implies that the injury or death or the
claimant is the result of the involvement of a third
party with the claimant being an innocent by stander
and the accident has occurred out of no fault of his.''
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C.M.A.No.3404 of 2019
13. As regards the arguments that the claimants may be treated as
one under the Employees' Compensation Act, the claimants / respondents
have not produced any documents to show that the deceased was under
the employment of the Sellamuthu/6th respondent herein, the same has to
be necessarily negatived. That apart the case of the respondents 1 to 5 /
claimants is that he was working as a driller and therefore, the judgment
of the Division Bench relied upon would not come to there as since in
both cases, the deceased were drivers, who were driving the vehicle and
the accident had occurred in the course of their employment.
14. For the above reasons, this Civil Miscellaneous Appeal is
allowed and the judgment and decree passed in M.A.C.T.O.P.No.124 of
2016 dated 23.03.2018 on the file of the Motor Accident Claims
Tribunal, Special District Court, Salem, is set aside. No costs.
Consequently, connected civil miscellaneous petition is closed.
25.03.2022
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C.M.A.No.3404 of 2019
Index:Yes / No
Speaking Order :Yes / No
ssn/ab
P.T.ASHA, J.,
ssn/ab
To
1. The Motor Accident Claims Tribunal,
Special District Court,
Salem.
2. The Section Officer,
V.R.Section,
High Court,
Madras.
C.M.A.No.3404 of 2019
and
C.M.P.No.20011 of 2019
https://www.mhc.tn.gov.in/judis
C.M.A.No.3404 of 2019
25.03.2022
https://www.mhc.tn.gov.in/judis
